Pulling the Teeth Out of the Endangered Species Act

The Endangered Species Act is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation” according to the United States Supreme Court in the landmark case Tennessee Valley Authority v. Hill. Despite being one of the strongest environmental protection statutes, the ESA is under attack. Congress has proposed 63 legislative attacks on the ESA in 2017 and more than 235 since the Republican Party took control of the House of Representatives in 2011. This trend of undercutting the ESA goes directly against the law’s purpose, the Supreme Court’s decisions, and Congress’s intent “to halt and reverse the trend toward species extinction, whatever the cost.” Several of the bills introduced to amend the ESA advanced through legislative committees this fall and highlight how Congress is pulling the teeth out of the act.

Click on the photo to watch a video on this issue with article co-author Kyle Sasser.

The first bill targets a symbol of the ESA and an endangered species—the gray wolf. The Gray Wolf State Management Act removes protections for the gray wolf by delisting the species without considering its survival or recovery. Not only that, the bill invalidates federal court decisions to keep the gray wolf on the endangered list and precludes any judicial review in the future. This bill injects politics into the ESA’s science-based process for delisting species and shuts down the possibility of enforcement and judicial review.

The second bill makes it harder to list endangered species and easier to delist them. First, it allows the government to prioritize certain listing petitions over others, regardless of when the government received them, but it bars the government from prioritizing petitions to add species over petitions to remove species. Second, the bill removes the 12-month deadline for responding to a petition. Practically, these two provisions allow the government to prioritize delisting petitions while listing petitions—and the underlying imperiled species—decay in administrative limbo.

The second bill also enables the government to reject any petition that would cause “significant, cumulative economic effects.” This includes effects on public land, private land, property values, water, power, public services, employment, and “revenues available for State and local governments.” Under this laundry list, the government could reject virtually all petitions outright because any action will have such effects. Further, the bill precludes review of such a decision unless: (1) the government decides the species is in danger of extinction; or (2) an outside party submits a new petition that analyzes the economic effects of listing and provides an alternative that would avoid significant effects. This bill flies in the face of the ESA’s purpose and the Supreme Court’s directive that endangered species are to be “afforded the highest of priorities.”

The third bill is the best example of Congress injecting politics into science because it erodes the “best-science-available” requirement of the ESA. Under this bill, if the government determines that a species is threatened or endangered, it must provide all the data it used to affected states before listing the species. If the states respond with contrary data, the government must accept the state’s data as the best science available. This bill redefines science and diminishes the expertise of federal agencies by giving affected states the ultimate say in scientific disputes.

The fourth bill amends the ESA’s provisions for attorney fees in citizen lawsuits. Currently, the ESA allows a court to award the costs of litigation to any party, but the final bill limits an award only to the prevailing party. This bill may discourage citizens from suing the government and limit the public’s right to enforce the act.

Most recently, the Senate Appropriations Committee made public the Chairman’s Mark for the Interior, Environment, and Related Agencies Fiscal Year 2018 Appropriations Bill. U.S. Sen. Patrick Leahy, D-Vt., vice chairman of the committee, pointed out that “this bill falls far short of the funding we need and contains poison pill riders that have no place in the appropriations process.” The bill cuts funding for listing of species by $3.4 million (16 percent); includes riders that negatively impact the sage grouse, the lesser prairie chicken, and the gray wolf; and a new provision that legislatively undoes the important Section 7 consultation case Cottonwood v. U.S. Forest Service.

In our current political climate, these bills may become law, but academics have generally labeled attempts to amend the ESA an uphill battle. One hurdle is that the law polls well with the public—nearly 90 percent of registered voters support the ESA. Another issue is that most prior attempts were unsuccessful because Congress simply reached too far. So, how likely are these bills to become law?

A recent attempt offers some guidance. Jamie Pang, policy specialist for the Center for Biological Diversity, has compared the current amendments to the unsuccessful Doc Hastings Bill of 2014. That bill included several familiar amendments to the ESA, such as requiring the government to publish all data used in determining whether to list a species; limiting the award of fees in citizen suits; and requiring the government to accept data from tribes and states and deem it the best science available during listing decisions.

While history does not bode well for the current legislative attacks on the Endangered Species Act, lawmakers seem emboldened by last year’s presidential election and the Republican majority in Congress. Importantly, these amendments are not just an attack on the survival and recovery of threatened and endangered species; they are an assault on our judicial system and on our ability to enforce our environmental laws and regulations.

*Thank you to Jamie Pang, policy specialist for the Center for Biological Diversity, for her insight and tireless work tracking legislative attacks on the ESA.

Kyle Sasser is a second-year JD candidate and staff editor for the Vermont Journal of Environmental Law. He graduated from Appalachian State University and earned a degree in journalism. Reporting on environmental issues in North Carolina encouraged Kyle to attend Vermont Law School and pursue a career in environmental law. He is most interested in land use and land management issues.

Rachel Stevens LLM’13 has worked as a staff attorney and assistant professor with the Environmental and Natural Resources Law Clinic (ENRLC) since completing the two-year LLM fellowship program in 2016.